The Author, Mr. Gaurav Thote, is an advocate practicing at the Bombay High Court and National Company Law Tribunal, Mumbai bench.
On September 29, 2021 a division bench of the Supreme Court comprising Chief Justice of India NV Ramana and Justice Surya Kant held[i] that the High Court can quash criminal proceedings in exercise of its powers under Section 482 of CrPC even if the offences are non-compoundable and a compromise is reached after conviction. It was observed that criminal proceedings involving non-heinous offences or where the offences are predominantly of a private nature, can be quashed irrespective of the fact that the trial has already been concluded or appeal stood dismissed against conviction.
In the said case, the accused who were convicted under Section 326 of the Indian Penal Code, in their revision petition, sought compounding of offence in light of the compromise between parties. The High Court rejected the plea on the ground that the offences are non-compoundable. In appeal, the Supreme Court set aside this view by placing reliance on Gian Singh v. State of Punjab, observing-
“11. True it is that offences which are 'non-compoundable' cannot be compounded by a criminal court in purported exercise of its powers under Section 320. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of ‘compoundable’ offences which have been consciously kept out as noncompoundable. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C.
While quashing the criminal proceedings and parting with the judgment, the bench observed that the Appellants/Accused shall be deemed to be acquitted of the charged offences for all intents and purposes.
True import of “CRIMINAL PROCEEDINGS”
The Supreme Court in a catena of judgments including the present case, while quashing the proceedings, has referred to the expression “criminal proceedings”. The true import of the term “criminal proceedings” is a conundrum i.e. whether it refers to only the trial court proceedings till conviction or entire proceedings until they attain finality. In Narayan Row v. Ishwarlal Bhagwandas, the constitution bench of the Supreme Court examined the expression "civil proceedings" within the meaning of Article 133(1)(c) of the Constitution and observed that while "civil proceedings" covers all proceedings in which a party asserts the existence of a civil right conferred by civil law or by statute and claims relief for breach thereof, a criminal proceeding on the other hand is ordinarily one which if carried to its conclusion may result in imposition of sentences such as death, imprisonment, fine or confiscation of property.
While referring to the above-said line in Narayan Row (supra), the Bombay High Court has observed that criminal proceedings would not be limited to proceedings before the trial Court but would include the entire proceedings till its final culmination.
Jurisprudence on compounding offences
Section 320 of the Code of Criminal Procedure permits compounding by consent, certain non-heinous offences that are mentioned in the table contained in the Code. However, Section 320(9) of the Code observes that “No offence shall be compounded except as provided by this section”. In Surendra Nath Mohanty v. State of Orissa[ii] a three-bench of the Supreme Court had refused to grant permission to compound the offence of Section 326 of Indian Penal Code (which is non-compoundable) after conviction. Relying on Section 320(9) of the Code, the bench held that although the parties had amicably settled the dispute, compounding of the offence would be impermissible and against the legislative mandate. In this backdrop, the bench maintained the conviction and reduced the sentence imposed to the period already undergone.
In Narinder Singh v. State of Punjab, the Supreme Court observed that a mere charge of Section 307 of IPC, though non-compoundable, would not affect the powers of quashing the FIR or criminal proceedings if the Court was of the opinion that an offence under Section 307 was unnecessarily included in the matter. The bench thus proceeded to quash the criminal proceedings on the ground of pre-trial compromise between parties. While formulating guidelines pertaining to quashing of criminal proceedings, it was categorically observed that in a case where conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. This view was essentially affirmed by a larger bench in State of MP v. Laxmi Narayan.
An issue regarding quashing of conviction on the ground of compromise arose for consideration before the Bombay High Court, Nagpur Bench in Maya Sanjay Khandare v. State of Maharashtra. Initially, the matter was listed before a division bench who noticed that the co-ordinate bench in Udhav Kisanrao Ghodse v. State of Maharashtra, while referring to a full bench judgment of Abasaheb Yadav Honmane v. State of Maharashtra as well as the ratio rendered by the Supreme Court in Gian Singh (supra) had quashed the judgment of conviction for all offences including the non-compoundable offence of Section 354 of IPC on the ground that the accused and informant had arrived at a compromise. The court also noticed that in Ajmatkhan & Anr. v. State of Maharashtra, the accused who had been convicted by the Magistrate as well as the Sessions Court for offence punishable under Section 354 of IPC sought quashing of the proceedings on the ground of compromise between the parties. This request was granted by the High Court after relying on Udhav Ghodse (supra). The judgment of conviction passed by the Magistrate and Sessions Court was set aside and the convicts were acquitted.
The division bench in Maya Khandare (supra) was unable to agree with the above said view and therefore referred the matter to a larger bench. The issues framed by the larger bench were-
(A) In a prosecution which has culminated in a conviction, whether the power u/s 482 Cr.P.C ought to be exercised for quashing the prosecution/conviction altogether, (instead of maintaining it and considering the issue of modification of the sentence) upon a settlement between the convict and the victim/complainant?
(B) Whether the broader principles/parameters as set out in Gian Singh vs State of Punjab and Another (2012) 10 SCC 303, Narinder Singh vs. State of Punjab (2014) 6 SCC 466 and Parbatbhai Aahir and others vs. State of Gujrat (2017) 9 SCC 641 have been correctly applied in deciding Udhav Kisanrao Ghodse, Ajmatkhan Rahematkhan and Shivaji Haribhau Jawanjal?
While referring to Section 320 of the Code and the history of compounding as adumbrated by the Supreme Court in JIK Industries Limited v. Amarlal V. Jumani, the bench observed that is no power conferred by the Code either on the appellate Court/revisional Court to acquit an accused convicted for a commission of a non-compoundable offence only on the ground that compromise has been entered into between the convict and the informant/complainant. After adverting to various judgments of the Supreme Court, the bench observed,
“The legal position is thus clear that compromise post-conviction for a non-compoundable offence ipso facto cannot result in acquittal of the convict and compromise is one amongst various aspects to be considered while imposing appropriate sentence when the conviction is liable to be maintained on examining the merits of the case.”
It was further observed that the full bench of the Bombay High Court in Abasaheb Honmane (supra) had distinguished the power to compound offences and the power to quash proceedings. While observing that the power to compound offences was a statutory power granted by Section 320 of the Code and that the power to quash a first information report or criminal proceedings under Section 482 of the Code found its source from Judge made law, the Court held that the powers operated in different spears. In conclusion, the High Court answered (A) in the negative, however, did not deem it necessary to answer (B). In any case it was held that the aforesaid earlier views of the high court fell contrary to the Supreme Court’s ruling in Surendra Nath Mohanty v. State of Orissa.
CONCLUSION
As against the view taken in Narinder Singh (supra), the Supreme Court in Ramgopal’s case has invoked its powers under Article 142 of the Constitution not only to quash the proceedings but also to acquit the accused after conviction only on the ground of compromise between parties. Moreover, Surendra Nath Mohanty’s ruling has not been considered wherein the Supreme Court, despite a compromise between parties, maintained the conviction and only reduced the sentence to the term already undergone. It is thus manifestly debatable whether the Apex Court in this recent case has exercised its powers within the framework of quashing non-compoundable offences.
[i] Ramgopal v. State of MP
